The Legitimacy Of Law – Questioning The PSO & PTA

By Mass L. Usuf –

From our independence in 1948, for seven decades and more, the people have remained deaf and dumb, hopelessly submitting themselves to those who have utterly misgoverned them. The misuse of power and authority and, the gross abuse of the law by selfish and opportunistic politicians especially, from the dawn of this century, culminated in the country being declared bankrupt this year.

In this background, today, Sri Lanka is at the crossroads of an historic struggle. A struggle in which the constitutional Sovereignty of the People is being challenged by an ‘Autocratic’ Democracy. The immoral and hypocritical suppression by the government of dissent by the economically oppressed masses is continuing to brew discontent with utmost resentment. The blatant violation of fundamental rights is a cause of concern to the citizens and has also drawn the keen attention of the international community including the Human Rights Council.

This column attempts to throw some light as to how the legal process, which is generally legitimate, can be misused in a manner which makes such actions lack the moral legitimacy of law. The abbreviations in the subject title represent the principal statutes of Public Security Ordinance of 1947 (PSO) and the Prevention of Terrorism (Temporary Provisions) Act, No. 48 of 1979 (PTA). It is worth reflecting on the words of former Prime Minister the late Mr. Dahanayake during the debate at the bill stage of the Public Security Ordinance of 1947 (PSO), in the State Council. 

Hitler And Mussolini Also Did Legally

“This Bill will go down to history as the meanest and dirtiest law… I describe it as the most dastardly, the most cruel, the most brutal law that has been inflicted upon the working classes of any country, not excepting Nazi Germany or Italy under Mussolini. Here, under the provisions of this Bill, there is complete and hundred per cent annihilation of civil liberties… I say that this Bill is something which no civilized society should consent to.” (Reflections on the Making and Content of the 1972 Constitution: An Insider’s Perspective, Nihal Jayawickrama).

Dahanayake’s reference to Nazi Germany and Mussolini with special focus on the annihilation of civil liberties need contextualisation.  

Today, President Ranil Wickremesinghe is taking full cover under the law to justify his undemocratic positioning. He takes refuge in the cliché that everything is done legally. According to him nothing unlawful has been done with regard to the numerous arrests, incarcerations, stifling of protests, attacking the peaceful protesters and the high-handedness of the law enforcers. This is how Hitler and Mussolini also went about doing their business. All what these two mass murderers did were also lawful according to them. They had the protection of the law, as they had the necessary laws passed for the tyranny they were unleashing within the country against the Jews, Romanis (gypsies), Slavs and other minorities.  If Hitler and Mussolini took refuge under the law for their atrocities, then the Nuremberg trials stands testimony to prove that what these two demons did under the guise of law had no legitimacy in law.

Sri Lanka A Police State

Sri Lankans after independence have lived lesser number of years freely and more years under emergency rule. Prior to the Janatha Vimukthi Peramuna insurrection in 1971, there were several instances when emergency rule was proclaimed. With the advent of the year 1971, emergency rule became almost a permanent feature. The longest being from 1983 to 2011 with short breaks in between. Then the emergency proclamation in March 2018 during the Digana Sinhala/Muslim riots. Under the Gotabaya Presidency and the present President, the PSO had been invoked and revoked several times that one has lost count of it. Making a mockery of the powers that has been vested in the Executive. 

Under these circumstances, as has been seen at present, the Police and the armed forces act in an arbitrary and authoritative manner with impunity. Unfortunately, the citizens are forced to unwillingly surrender their freedoms and rights on the face of such repression.  Instances are numerous when arrests have been made in violation of due process. Many protestors, it is said, do not sleep in their houses fearing being arrested in the night. In fact, the Bar Association of Sri Lanka in August expressed concern over “the arrests of persons by police officers dressed in civilian clothing and without possessing any identification. It is alleged that persons so arrested have been taken away in unidentifiable vehicles and kept for several hours at undisclosed locations. On these occasions no receipts of arrest have been issued nor an opportunity given to the persons arrested to inform relatives, friends or lawyers of their whereabouts.”

Intimidation By Military

There have been several occasions when the military had been called in using the Public Security Ordinance for Policing civilians. As President Wickremesinghe says, “it is done according to the law”. He fails to appreciate the legitimacy of his “according to law” actions. The following observations will give an idea about legitimacy.

Clément N. Voule, UN Special Rapporteur on the right to peaceful assembly and association in a report presented to the Human Rights Council critically notes the tendency of deploying the military and using military-style tactics to quash peaceful protests. He warned that this approach was resulting in an escalation of violence and tensions, human rights abuses, and increased impunity in the context of peaceful protests.

“As a general rule, the military should not be used to police assemblies … It is not the mandate of the military to police protests, nor it is trained in protection and de-escalation techniques, nor does it have the appropriate equipment for policing protests. Broadly, deployment of the military casts a shadow of fear and intimidation, and creates a chilling effect that in and of itself violates the rights to freedom of peaceful assembly.”

Change Or Be Damned

Under the PSO, the President may make any emergency regulation as appear to him to be necessary or expedient. Without prejudice to the generality of the powers conferred, the President can also authorise:

(a) The detention of persons;

(b) Taking of possession or control of any property or undertaking;

(c) The acquisition of any property other than land;

(c) To enter and search any premises without a search warrant;

(d) To suspend the operation of any law;

(e) To arrest and punish offenders as may be provided for by the regulations.

As citizens belonging to a constitutional democracy, it is the absolute right of everyone to defend, protect and safeguard our rights, freedom and liberty. To do this one ought to primarily know what these rights are. Needless to say, all the people must unite to affect a social, legal and political transformation. At this point of time people are clamouring for a change in the system of governance. They are simply fed up. 

It is time that the people either capitalise this situation and forge ahead for a peaceful, prosperous and truly democratic nation or, be damned for the next several decades. The latter option will certainly make our progeny to curse us for not acting now and being accomplices by impotently subscribing to the continuing dominance of evil, corruption, nepotism, waste and deception. Worst of all, the suppression of basic human rights and the continuing repression in the guise and, under the cover, of law.

In my next Column, I will be elaborating on the Prevention of Terrorism Act (PTA).

*Mass L. Usuf, LL. B (Hons) UK, Attorney at Law (Ex-Advisor to former Presidential Private Department of UAE). Can be reached via email at: ctcolumn@yahoo.com

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